Microsoft: Call the next witness

After Chairman Bill Gates dominated the courtroom, the software giant releases its witness list for the coming week. Will other Microsoft execs be able to offer similar oomph?

4 min read
WASHINGTON--Microsoft on Friday released its witness list for the coming week, but it appears to lack the star power seen earlier in the courtroom.

Testimony by Microsoft Chairman Bill Gates dominated most of the sixth week in court during a proceeding that could eventually determine a remedy for the software giant's antitrust violations. Microsoft CEO Steve Ballmer is still identified as a witness, but he is not on the schedule next week. The testimony is expected to go for at least two more weeks.

On deck for the remedy proceeding's seventh week: Gregg Sutherland, Qwest Communications' senior vice president of corporate strategy; Robert Short, a Microsoft corporate vice president responsible for the Windows OS kernel; Richard Fade, Microsoft's senior vice president responsible for relationships with original equipment manufacturers; Stuart Madnick, a professor of engineering with the Massachusetts Institute of Technology; Will Poole, vice president of Microsoft's Digital Media division; and Linda Averett, a product unit manager with Microsoft's Windows Media Platform division.

Microsoft has identified 29 witnesses on its behalf, and nine so far have testified.

A controversy could resurface when Sutherland takes the stand next week. States' attorneys will be questioning Sutherland about a contentious document. During a lengthy court conference, U.S. District Judge Kollar-Kotelly heard arguments that a document pertaining to an agreement between Microsoft and Qwest should be kept confidential. An attorney for Qwest argued that the document should also be kept from the states' attorneys general prosecuting Microsoft, because the information could be used against the communications company. Kollar-Kotelly admitted the document with the requested restriction. Plaintiffs' lawyers will have access to the document, but their clients will not.

Nine states and the District of Columbia are pursuing the case against Microsoft. The Justice Department and nine other states settled in November, but Kollar-Kotelly has yet to approve or reject the deal.

The Justice Department settlement mainly places restrictions on Microsoft's business practices, but the states want sanctions that would affect software code. The sanctions would, among other things: compel Microsoft to sell a second version of Windows with so-called middleware, such as browsing and media playback software, stripped out; give away for free the source code, or blueprint to Internet Explorer; and license through auction Office for use on competing operating systems.

A whole new Gates
The highlight of the case so far has been the nearly three days of cross-examination of Gates by states' attorney Steven Kuney. In many ways, Gates' testimony redeemed his appearance during the trial's main, or liability, phase that concluded in September 1999. Justice Department attorney David Boies showed snippets of a taped deposition that made Gates appear either ill-informed or evasive. Gates did not testify in court during the main trial.

"There was the theatrical performance, and Gates was great," said Glenn Manishin, an antitrust attorney with Kelley Drye & Warren in Vienna, Va. "He was well-coached. He was not argumentative. He was not defensive. He was eloquent and witty. He came across as a person, rather than the babbling idiot portrayed in the videotape."

The Microsoft chairman argued in court and submitted written testimony that the litigating states' remedy proposal is too broad, ambiguous, and in many ways simply impossible for Microsoft to follow. While Gates appeared to outflank Kuney with in-depth knowledge of the states' remedy and its potential impact on Microsoft, the long-term benefits of the testimony are uncertain.

"Gates' performance was good, but substance was woefully lacking," Manishin said. "It is easily pierced, and in fact, it was pierced by Kuney."

Indeed, Kuney's methodical questioning of Gates may have carved out an alternative framework for Kollar-Kotelly to draft a remedy that would meet the states' objectives and take into account many of Microsoft's criticisms about ambiguity.

Kuney's style was a winner, Manishin said. "In a court of law, unlike 'Law and Order,' you don't have a Perry Mason moment where the witness cries and you've won the case," he said. It's the incremental building of fact and little by little eroding the credibility of the other side. And that's what Kuney was doing."

Prepping a proposal
As the remedy proceeding begins to wind down, Howard University law professor Andy Gavil said to look for the states to begin prepping a modified remedy proposal for Kollar-Kotelly.

"I would think it a good bet they will offer up a modified proposal," he said. Their argument will be that they tried to take into account the concerns you heard on the stand, and here's their modified proposal."

This submission would likely come after the last witness has been cross-examined and would be a crucial maneuver on the part of the litigating states. Kollar-Kotelly has a proposal from the states and Microsoft that was submitted before the proceeding started and from which she could craft her own remedy.

"But the states may not want to leave it to her to do that, because she may not do it at all," Gavil said. "The danger for the states is for her to say the states offered up specific remedies and failed to support those remedies with evidence."

In that case, she could dismiss the states' case, a scenario they would absolutely want to avoid, Gavil added.